Search Site

Tuesday, July 03, 2012

"Because He Can Take It"

I don't have much of substance that I care to add to Leakapalooza, although I was amused by Randy Barnett's quote in the John Fund story. But I would like to add one piece of completely responsible speculation, and an analogy (with thanks to my former student Adam Pittman for supplying it). I am beginning to think the source of all the leaks was . . . Chief Justice John Roberts.

Why? The received narrative is that Roberts upheld the ACA to save the institutional interests of the Court in a politically divided season. But what if he was playing for higher stakes than that? I don't doubt that the man loves his country. This has been a divisive era. Obamacare itself was divisive, and either upholding it or striking it down would be politically divisive. What the nation needs is unanimity, and the best way to find that is by finding a common villain. Roberts may have thought he could provide unanimity through the Nixon-goes-to-China move of a conservative authoring the majority opinion. But, perhaps to his surprise, although he received liberal love, conservatives did not close ranks around him. A further, shattering step was needed. By leaking that he wrote both the majority decision upholding the ACA and the dissent arguing that it should be struck down, Chief Justice Roberts heroically becomes that common villain. Now the nation can say, with one voice, "I hated Roberts's opinion in NFIB," and as long as they remain vague about which opinion they mean, the nation -- on the eve of Independence Day, no less! -- can once again come together.

Who does that make Chief Justice Roberts? Well, his robe looks a little like a black cape. He has dark hair and a reasonably strong jawline. He looks kind of like a playboy multimillionaire. He has been hunted, all the way to Malta. "He's a silent guardian. A watchful protector. A dark knight."